The Biden administration considered declaring a public health emergency to preserve broad access to abortion services following the US Supreme Court’s decision last month to overturn Roe v. Wade, but officials decided against the move at the time, according to people familiar with the matter.
The possible declaration was discussed between top officials at the Health and Human Services Department and the White House ahead of a June 28 news conference by Health and Human Services Secretary
Jennifer Klein, director of the White House Gender Policy Council, said that an emergency declaration is “not off the table,” but questioned whether it would help.
“It doesn’t free very many resources,” she told reporters at a briefing Friday, because there are only “tens of thousands of dollars” in the government’s public health emergency fund. “And it also doesn’t release a significant amount of legal authority. And so that’s why we haven’t taken that action yet.”
Biden on Friday signed an executive order requiring the health department to compile a report on its actions so far to ensure abortion access.
“If you want to change the circumstances for women, and even little girls in this country, please go out and vote,” he said in remarks at the White House.
But progressives have demanded a far more forceful response from the White House. They want aggressive administrative action that would be all but certain to draw court challenges, like providing abortions on federal property, and a stronger push from Biden on Senate Democrats to pass a law legalizing abortion nationwide and even add justices to the Supreme Court.
The president is “actively choosing inaction,” said
Biden has said he would support passage of a law codifying the protections of Roe but that he does not want to expand the court.
Becerra said in an interview last week that the administration must move cautiously in the wake of the Supreme Court decision ending Roe.
“Anything we do, we know we’re going to be in court the next day,” he said. “And so we have to make it stick. We’re not going to over-promise because the worst thing you can do is over-promise early.”
Had the federal government declared a public health emergency, Becerra’s department would have gained new powers for an indefinite period. For example, abortion rights advocates say Becerra could have ordered that medication abortion can be prescribed across state lines, or even moved to shield doctors from legal liability for performing abortions in states that outlaw the procedure.
But White House aides and some HHS officials were concerned the declaration wouldn’t make a substantial impact, that it might be seen merely as a public relations maneuver and that it would draw lawsuits, according to the people familiar with the matter. Some officials were also concerned that a public health emergency declaration over abortion would take money from Covid-19 programs, which are funded in part under an emergency declaration for the pandemic.
“The Secretary of Health and Human Services has to declare a public health emergency, and it’s not a question of legal authority that he has the authority to do that at any time. The question is, what authority does he gain by declaring a public health emergency?,” Klein said.
The people asked not to be identified because the discussions have been private.
A public health emergency “would have incremental benefits at best” and “may be a little bit of a legal stretch and may not be worth political capital to do so,” said Carmel Shachar, executive director of the Harvard Law School Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics.
The main impediment to the full use of federal powers under a public health emergency would be a provision of federal law known as the Hyde amendment, which prohibits federal funds from being used for abortions, Shachar said.
Allison Hoffman, a health law professor at the University of Pennsylvania Carey Law School, said the Biden administration’s actions so far in response to the Supreme Court ruling have been “marginal in terms of access.”
She said it’s unclear whether federal law gives the health department clear authority to declare an emergency over the court’s ruling. The declarations typically follow events like natural disasters.
Within the administration, there are concerns an emergency declaration wouldn’t unlock many new authorities and that funding would be scarce, according to one person familiar with the matter.
Becerra said in the interview that it wasn’t clear whether an emergency declaration would expand access to abortion. “We’re trying to figure that out,” he said.
But abortion rights advocates say the Biden administration should take its chances, given the grave stakes.
“There might be risk with some of these ideas,” said Morgan Hopkins, interim executive director of campaign and strategies for the advocacy group All Above All. But she added: “The urgency of their action needs to meet the urgency of the moment.”
Among other proposals to expand abortion access after the reversal of Roe, HHS staff suggested beefing up a new website to help people seek medication abortion.
The reproductiverights.gov website is currently threadbare, with little more than basic information on contraception and abortion and links to abortionfinder.org, a website maintained by abortion rights advocacy groups. The proposed update would have included information about how to order free emergency contraceptive pills, known as Plan B, while showing which pharmacies have the medicine in stock.
HHS staff also proposed adding a tool to the site to connect people to health-care providers who can prescribe mifepristone, a drug that can be used to induce an abortion. Mifepristone can be difficult to obtain. Federal regulations strictly limit the circumstances under which patients can be prescribed the drug and some states have additional restrictions, including limits on prescribers and requirements that the pill be distributed only in medical offices.
Becerra said in his news conference that his department would increase access to mifepristone, ensure patient privacy and nondiscrimination in reproductive health care, and safeguard the clinical judgment of doctors and hospitals under an emergency treatment law, but didn’t provide details of the measures.
“This is the moment to be bold and innovative,” Bracey Sherman said. “People need to see that they’re doing something, not just rejecting every idea that’s put in front of them.”
(Updates with Klein remarks in third paragraph)
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